Colman Herman v. Department of Environmental Protection (SPR 20222908)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 5, 2023 SPR22/2908 Jakarta Childers Records Response Coordinator Department of Environmental Protection 1 Winter Street Boston, MA 02108 Dear Jakarta Childers: I have received the petition of Colman Herman appealing the response of the Department of Environmental Protection (Department/DEP) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On November 5, 2022, Mr. Herman requested “copies of any and all internal and external communications related to [a specified] public records request.” Previous Appeal This request was the subject of a previous appeal. See SPR22/2715 Determination of the Supervisor of Records (December 6, 2022). In my December 6th determination, I ordered the Department to revise its fee estimate or provide further explanation of how the fees assessed are consistent with G. L. c. 66, § 10(d). Subsequently, the Department responded on December 20, 2022. Unsatisfied with the Department’s response, and objecting to the fees, Mr. Herman further appealed, and this case was opened as a result. The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10A(d); 950 C.M.R. 32.03(4). “Public records” is broadly defined to include all documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee of any agency or municipality of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Att’y for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of One Ashburton Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832 • Fax: (617) 727-5914 sec.state.ma.us/pre • pre@sec.state.ma.us

Jakarta Childers SPR22/2908 Page 2 January 5, 2023 establishing the applicability of an exemption). To meet the specificity requirement a custodian must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. If there are any fees associated with a response, a written good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. Fee Estimates - Agencies An agency may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.05) per page may be assessed for a black and white single or double-sided photocopy of a public record. G. L. c. 66, § 10(d)(i). Agencies may not assess a fee for the first four (4) hours of employee time to search for, compile, segregate, redact or reproduce the record or records requested. G. L. c. 66, § 10(d)(ii). Where appropriate, agencies may include as part of the fee an hourly rate equal to or less than the hourly rate attributed to the lowest paid employee who has the necessary skill required to search for, compile, segregate, redact or reproduce a record requested, but the fee shall not be more than $25 per hour. Id. A fee shall not be assessed for time spent segregating or redacting records unless such segregation or redaction is required by law or approved by the Supervisor of Records under a petition under G. L. c. 66, § 10(d)(iv). See G. L. c. 66, § 10(d)(ii); 950 C.M.R. 32.06(4). The Department’s December 20th Response In its previous November 21, 2022 fee estimate, the Department estimated a total fee of $550, summarized as follows: 5.75 hours of search time + .25 hours production time + 20 hours segregation time = 26 hours total, excluding the first four hours = 22 hours at $25/hour = Total Good Faith Estimate: $550.00 In its December 20, 2022 response, the Department argues that “5.75 hours for this request is a conservative estimate of the actual cost of complying with this request,” and provides the following information: This is not a case where records are limited to those that are part of an individual file record stored in one place, under the custody of one person. Instead, this is a request for “any and all internal and external communications” related to [the] October 22, 2022, public records request (seeking communications between the Department of Environmental Protection and Harvard University related to the

Jakarta Childers SPR22/2908 Page 3 January 5, 2023 Newell Boathouse and the Weld Boathouse.) The search required the time of not just the waterways staff who were responding to [the] original records request but also additional records response coordinators and attorneys working on [the] request. This came to a total of 9 staff members identified as having responsive records. The 5.75 hours was broken down into 4.5 hours for regular DEP staff to search and 1.25 hours for IT staff to search. The 4.5 hours of regular staff search time represents only half an hour of time for each of the nine staff members who were identified as likely having responsive documents. In addition, using IT staff to search is an efficient way to be sure that, for requests for “any and all documents” by all staff, we are identifying everything, even if the documents were not those in the custody of the core team of records response coordinators, waterways staff members and attorneys that made up the 9 staff members who also searched their files. In its December 20th response, the Department also explains that, while it intends to charge for the segregation and redaction of attorney-client privileged information, its “statement in the November 21, 2022 fee estimate about the possible application of other exemptions was intended to be advisory, not a basis for charging a fee. It was included after the paragraph about the attorney-client privilege and was intended to advise [Mr. Herman] that there may be exemptions in addition to the attorney-client.” In its previous November 21st fee estimate, the Department explained that “a preliminary IT search found 400 items. Therefore, at least 400 pages @ 3 minutes segregation time per page = 1200 minutes/60 = 20 hours segregation time, mainly for attorney-client privileged materials.” In its December 20th response, the Department explains that it “estimates 3 minutes per page to review for attorney-client privilege and segregate documents because that has been, in [the Department’s] experience, the amount of time it takes for a careful and through review.” The Department further notes that at “3 minutes per page reviewing each of the 400 emails it would take 20 hours.” The Department goes on to argue the following: DEP has based its estimates on the need to spend 3 minutes a page for segregation and redaction for many years. See, e.g., SPR19/0883 (approving fees at a rate of 3 minutes per page for review of documents that contain investigatory and personal information). Similarly, the review for attorney-client communication requires a careful, page by page review to determine definitively whether the document reflects the request for, or provision, of legal advice, and does not just happen to be a document to or from a lawyer. Based on the Department’s response, it remains unclear why the Department requires 3 minutes per page to review email correspondence. Accordingly, I find the Department must revise its fee estimate, or provide further explanation as to why such an amount of time would be required to segregate and redact each email correspondence.

Jakarta Childers SPR22/2908 Page 4 January 5, 2023 Conclusion Accordingly, the Department is ordered to provide Mr. Herman with a response to his request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: Colman Herman